Citation Nr: 1119845
Decision Date: 05/23/11 Archive Date: 06/06/11
DOCKET NO. 10-08 832 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines
THE ISSUES
1. Whether new and material evidence has been received to reopen a claim of entitlement to revocation of forfeiture of the appellant's right to Department of Veterans Affairs (VA) benefits.
2. Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant, D.M. and P.S.
ATTORNEY FOR THE BOARD
K. Conner, Counsel
INTRODUCTION
The appellant served on active duty from February 1941 to April 1942. He was a prisoner of war from April 1942 to October 1942. He was not under military control from October 1942 to May 1945, when he was returned to active duty. Thereafter, he appears to have had essentially continuous service until December 1948.
This matter comes to the Board of Veterans' Appeals (Board) from determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In a May 2009 determination, the RO denied the appellant's claim of entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund on the basis that he had forfeited his rights to VA benefits. In an August 2009 decision, the RO determined that new and material had not been received to reopen the claim of entitlement to revocation of forfeiture of the appellant's right to VA benefits.
In March 2004, the appellant, his spouse, and an acquaintance testified at a Board videoconference hearing. Following the hearing, the appellant submitted additional evidence to the Board, along with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2010).
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. In December 1985 decision, the Board determined that the appellant had forfeited his right to VA benefits under the provisions of 38 U.S.C.§ 3503(a) (currently 38 U.S.C.A. 6103(a)).
2. On numerous occasions thereafter, the appellant sought entitlement to VA benefits. The RO consistently denied the claims, finding that the appellant had forfeited his right to VA benefits and that new and material evidence had not been received to reopen the claim for revocation of the forfeiture of his VA benefits. Most recently, the appellant was notified of the RO's determination and his appellate rights in a January 2004 letter, but he did not appeal.
3. In May 2009, the appellant submitted his most recent claim for VA benefits, seeking revocation of the forfeiture.
4. The evidence received since the Board's final December 1985 decision finding that the appellant had forfeited his rights to VA benefits and the final January 2004 determination that new and material evidence has not been received to reopen the claim for revocation of the forfeiture is either cumulative or does not relate to an unestablished fact necessary to substantiate the claim.
5. The appellant has forfeited his entitlement to VA benefits, including a one-time payment from the Filipino Veterans Equity Compensation Fund.
CONCLUSIONS OF LAW
1. The December 1985 Board decision forfeiting the appellant's rights, claims, and benefits under the laws administered by VA is final. 38 U.S.C.A. § 4004(b) (West 1982); 38 C.F.R. 19.104 (1985).
2. The January 2004 RO determination denying the appellant's request to reopen his claim for revocation of the forfeiture of his VA benefits is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2010).
3. New and material evidence to reopen the claim for revocation of the forfeiture of the appellant's rights to VA benefits has not been received. 38 U.S.C.A. § 5108 (West 2010); 38 C.F.R. § 3.156(a) (2010).
4. Entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund is legally precluded. 38 U.S.C.A. § 6103(a) (West 2002); Pub. L. No. 111-5, § 1002, 123 Stat. 115, 200-202 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000 (VCAA)
As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the appellant under the VCAA.
In an April 2009 letter issued prior to the initial determination on his claim, VA notified the appellant of the information and evidence needed to substantiate and complete his application to reopen his claim for revocation of the forfeiture of his VA benefits. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2010). The April 2009 letter included the notification requirements imposed by the U.S. Court of Appeals for Veterans Claims (Court) in Kent v. Nicholson, 20 Vet. App. 1 (2006). In addition to the April 2009 notification letter, in a conference held prior to the August 2010 Board hearing, the forfeiture issue was discussed with the appellant and his representative, including the type of evidence required in order to prevail in the claim. See e.g. Bryant v. Shinseki, 23 Vet. App. 488 (2010).
With respect to VA's duty to assist, the record shows that no additional development action is necessary as there is no indication of relevant, outstanding records which would aid in substantiating the revocation of forfeiture claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2010). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary with respect to the appellant's application to reopen his claim for revocation of forfeiture of his VA benefits. Indeed, neither the appellant nor his representative has contended otherwise.
With respect to the appellant's claim of entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund, the Board similarly finds that no further action is necessary to comply with VA's duties to notify and assist under the VCAA. Given the Board's decision on the forfeiture issue, the appellant's claim for a one-time payment from the Filipino Veterans Equity Compensation Fund must be denied as a matter of law. Thus, any deficiency in VA's VCAA notice or development action is harmless error. Pratt v. Nicholson, 20 Vet. App. 252 (2006); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive).
Factual Background
The appellant's service treatment records are negative for complaints or findings of a psychiatric disability. At June 1946 and December 1948 military separation medical examinations, psychiatric evaluation was normal.
In May 1951, the appellant submitted an original application for VA benefits, seeking service connection for numerous disabilities he claimed to have incurred in service, including disabilities of the chest, back, right knee, and right eye. His application is silent for any mention of a psychiatric disability, as is medical evidence assembled in connection with the claims.
In January 1971, the appellant submitted a claim for VA pension benefits, claiming, inter alia, that he was totally helpless "on account of my mental incapacity that occurs every now and then."
In support of his claim, the appellant submitted an April 1971 letter from R.B., M.D., a private "Alienist - Internist" who claimed that the appellant had been under his treatment since 1967 for "depressive type manifested by indifference to environment with tinnitus aurium and loss of appetite." Dr. B. noted that clinical records of this treatment, however, were unfortunately unavailable as they had been destroyed in a typhoon.
The appellant also submitted an April 1971 letter from A.L., M.D., who noted that the appellant had been evaluated on several occasions in March 1971 in connection with his complaints of irritability, headaches, forgetfulness, poor appetite and interrupted sleep. He also reported having no initiative or ambition, feelings of fear for no particular reason, reclusiveness, staring into space, auditory hallucinations, and depressive delusions. Based on "examinations and observations," Dr. L. concluded that the appellant was "suffering from a mental illness called Schizophrenic Reaction of the Schizo-Affective Type."
The appellant was afforded a VA psychiatric examination in June 1971, at which he claimed that in 1962, he developed insomnia and depression. More recently, he reported that he had become irritable and fearful for no apparent reason. The examiner noted that there was a record of March 1971 consultations at a private hospital which had noted schizophrenic reaction. On mental status examination, the examiner noted that the appellant appeared to be in good mental contact, well groomed, well behaved, and cooperative. He was conscious, coherent, and relevant. There were no suicidal thoughts or delusional hallucinations. Orientation and memory were not impaired. There was no evidence of intellectual impairment. The diagnosis was depersonalization neurosis.
In August 1971 and November 1971 statements, the appellant's spouse argued that the appellant was entitled to pension benefits as he had a mental ailment, as proven by Drs. L and B. She claimed that as a result of this mental disability, he was precluded him from engaging in any gainful employment and had to be secluded.
In connection with his VA pension claim, the appellant submitted October 1972 and June 1973 Income and Net Worth Statements on which he indicated that but for a Sari-Sari store, he and his spouse had no income or assets, including farms, a business, or rental properties. He indicated that he was unable to work due to numerous disabilities, including mental illness. In a February 1974 Income and Net Worth Statement, the appellant indicated that he had his spouse had no income from any source, nor did they have any assets.
In June 1973, the appellant submitted a letter again contending that his present mental and physical conditions prevented his from securing substantially gainful employment. In support of his contentions, he attached a June 1973 statement from J.G.B., M.D., who indicated that the appellant had reported a history of mental disorder characterized by being withdrawn, forgetful, and neglectful of his personal needs such as eating and grooming. The impressions included mental illness, probably schizophrenia.
In an April 1974 affidavit, the appellant's Barrio Captain indicated that he knew that the appellant was unemployable due to numerous conditions, including a stomach disability and indifference to his neighbors whenever a headache occurred.
The appellant again underwent VA psychiatric examination in October 1974, during which he was described as staring blankly and talking to himself. He claimed to have auditory hallucinations in the form of vague, inarticulate voices, and claimed to feel water coming out of his ears. He laughed by himself without apparent cause. He reported that he felt as if people wanted to corrupt him by inviting him on drinking sprees. He indicated that his refusal to participate had caused him to make enemies. The examiner noted that during the examination, the appellant huddled in a fetal-like position. His attention was lacking and he did not want to talk. He had no initiative and did not care to do any kind of useful work. He refused to associate with people and exhibited poor insight and judgment. The diagnosis was schizophrenic reaction, simple type. The appellant was determined to be mentally incompetent.
Based on the results of the October 1974 VA psychiatric examination, in a November 1974 rating decision, the RO awarded pension benefits to the appellant, finding that he was permanently and totally disabled due to schizophrenic reaction.
In April 1982 the appellant again underwent VA psychiatric examination. He reported that he began to develop psychotic symptoms in 1960 and had been unable to work since that time. He indicated that his spouse had opened a small grocery store and had been able to use the earnings to supplement their daily expenses. On examination, the appellant stared blankly and smiled inappropriately at intervals. He would frequently press both palms to his ears. When asked why he was doing so, he claimed that the voices were disturbing him. His affect was inappropriate. The diagnosis was schizophrenia in good remission.
In June 1982, a social survey was requested. In July 1982, a social worker solicited information from individuals in the appellant's neighborhood regarding his mental state. A male merchant advised the social worker that the appellant appeared to be fine. Another man who was playing chess at a nearby store similarly related that the appellant was fine. A young girl who worked for the appellant's family by performing errands also related that the appellant was fine and was currently at his home reading the newspaper. The social worker noted that in all of the responses, none of the neighbors had pointed out a dissenting opinion regarding the appellant's mental state. Rather, respondents universally verbalized that the appellant was fine.
The social worker then made an unannounced visit to the appellant's residence. As he folded the newspaper, the appellant asked the young errand girl to request the identity of the social worker. In a strategy designed to test the reaction of the appellant, the social worker responded that he was looking for the appellant's spouse. The appellant was very accommodating and advised that his spouse was taking a bath. After a few minutes of chatting, the social worker concluded that the appellant was able to respond to inquiries consistently. He appeared well groomed, clean and gentlemanly. After the appellant's spouse entered the room, she began asking questions regarding the social worker's identity. After completing her inquest, she began verbalizing regarding the appellant's condition. The appellant then began demonstrating behavior "exactly opposite to what he previously had shown," including being inattentive. The social worker terminated the interview, concluding that the appellant's alleged mental illness had "improved significantly."
In October 1982, a field examination was requested to gather evidence for a determination as to whether or not the appellant was actually suffering from a psychiatric disorder or whether he was exaggerating or feigning illness for the purpose of obtaining VA pension benefits.
In November 1982 and February 1983, VA field investigators visited the appellant's neighborhood. During the November 1982 field examiner's visit, two of the appellant's neighbors were deposed. F.B. indicated that he and the appellant sometimes spent the day going to the city plaza to listen to conversations about religion or other topics. The appellant did not participate in the discussions in the plaza but the neighbor indicated that he and the appellant discussed the topics afterwards in a sensible manner. The neighbor indicated that the appellant was known to dress nicely. He indicated that the appellant did not exhibit anything unusual about his mental condition. Indeed, he noted that in the neighborhood, the appellant was regarded as silent and unsociable, but not mentally ill. He indicated that it was his belief, however, that the appellant's mental condition was not normal, although he conceded that it was difficult to discern if one did not know him well as he exhibited no outward manifestations of being mentally ill.
Another neighbor, A.E., indicated that she had known the appellant for 20 years and saw him daily. She indicated that he dressed neatly and was particular about his mode of dressing. She indicated that the appellant could be irritable and sometimes forgetful, but exhibited no other trait to make one think he was mentally ill. She further indicated that his condition had improved over some years. She indicated that the appellant was not regarded in the neighborhood as mentally ill.
The field examiner attempted to depose the appellant in November 1982, but concluded that the effort was futile. He felt the appellant had been coached on how to act by his spouse. In her deposition, the appellant's spouse described the appellant as "very sickly." She described the appellant as being of the nervous type who was forgetful and at times stared blankly into space. She acknowledged that he went out on a daily basis to the city to have a meal, see a show, or hear discussions of religion at the plaza. She further acknowledged that the appellant was not perceived as mentally ill in the neighborhood, as he exhibited no outward signs of mental illness. She indicated, however, that the appellant did not act like an ordinary mentally ill person.
During February 1983 visit, the field investigator noted that upon arriving at the appellant's house, he observed the appellant to be neatly dressed and mentally healthy. He observed the appellant embrace and kiss a young girl who was playing in front of the house. Suddenly, the appellant's spouse whispered to the appellant, apparently advising him of the presence of the field investigator. Thereafter, the appellant exhibited quite different behaviors and mannerisms such as smiling inappropriately and shouting at the investigator. The appellant's spouse claimed that he appellant suffered from a silent and irritable type of sickness.
The field investigator also interviewed four other individuals in the appellant's community, all of whom described the appellant as being physically and mentally healthy, with no observable unusual behavior. They indicated that the appellant was not known in the community as a mentally ill person.
In April 1983, the appellant submitted additional medical records, including a clinical record showing that in February 1983, shortly after the field examination, he sought a consultation claiming to have psychiatric symptoms such as auditory hallucinations. The examiner concluded that the appellant was still suffering from a mental illness called schizophrenia.
In March 1983, the RO solicited a VA medical opinion as to whether the appellant exhibited a mental disability or whether his condition had been exaggerated. In April 1983, the VA psychiatrist who had previously examined the appellant concluded after reviewing the claims folder and February 1983 field examination report, that the appellant was not suffering from any mental disease. The final diagnosis was "no mental disease."
During an April 1983 field investigation, it was determined that the appellant's spouse owned extensive real estate which she claimed to have inherited. The field investigator interviewed the tenants of the numerous properties as well as the appellant's spouse and determined that she and the appellant derived significant rental income from these properties.
In June 1983, the RO proposed to charge the appellant with violating 38 U.S.C.A. § 3503(a) (currently 38 U.S.C.A. § 6103) by deliberately feigning mental illness or exaggerating mental symptoms at the October 1974 VA medical examination in order to establish his entitlement to pension. The RO further noted that the evidence showed that the appellant continued to deliberately and intentionally exaggerate symptoms of mental illness at the April 1982 VA medical examination and during July 1982, November 1982, and February 1983 field investigations. The RO determined that it was clearly evident from the evidence of record that the appellant purposely feigned mental illness in order to establish continued entitlement to VA benefits. In a separate June 1983 letter, the RO proposed to charge the appellant's spouse with knowingly conspiring and assisting him in feigning or exaggerating his mental illness in order to obtain VA benefits. The RO further proposed to charge the appellant with intentionally concealing her assets and income. The appellant and his spouse were offered the opportunity to respond, submit additional evidence, and request a hearing.
In a July 1983 letter, the appellant and his spouse claimed that they were pensioners who were ignorant of the laws. They also claimed that the appellant was, in fact, mentally incompetent. In support of their contentions, they submitted a July 1983 joint affidavit from their Barangay Captain and their Barangay Councilman attesting that the appellant was suffering from mental disorder by reason of schizophrenic reaction of the schizoaffective type. They claimed that the appellant was irritable, violent to his neighbors, and had auditory hallucinations.
In a January 1984 letter, the RO advised the appellant that he had forfeited his rights to VA benefits. It was noted that the evidence clearly established that he knowingly, intentionally, and deliberately made, presented, and/or caused to be furnished to VA materially false and fraudulent statements and evidence in support of his claim for pension. Such false evidence consisted of his feigning mental illness before VA examiners in an attempt to establish entitlement to pension benefits. It was noted that the evidence, however, established that the appellant was not permanently and totally disabled due to mental illness and that he functioned normally in his community. Accordingly, VA concluded that the evidence of record established beyond a reasonable doubt that the appellant knowingly and intentionally represented himself to be a mentally ill person in support of his claim for pension benefits and that such false representation was deliberately made, knowing it to be false, whereby the appellant obtained monetary benefits to which he had no legal entitlement. In a separate January 1984 decision, the appellant's spouse was also found to have forfeited her rights to VA benefits.
The appellant appealed the forfeiture decision. In support of his appeal, he submitted additional evidence, including an April 1984 note from C.D.A., a private psychologist, who indicated that the appellant was still suffering from schizophrenia, paranoid type.
In June and August 1984 statements, the appellant's spouse again alleged that the appellant was mentally incompetent. She claimed that the negative evidence used in the forfeiture decision had been the result of "some intrigues against us especially our relatives" who were getting their revenge because she and the appellant had refused to give the relatives money.
In a December 1985 decision, the Board concluded that the appellant had feigned a serious mental illness in order to qualify for VA pension benefits. The Board found such conduct to be, beyond a reasonable doubt, fraudulent and designed to subvert the VA claims process. The Board therefore concluded that the appellant had, by his fraudulent conduct, forfeited his right to VA benefits. In a March 1986 decision, the Board concluded that the forfeiture declared against the appellant's spouse was proper. In September 1986, the Board denied a motion for reconsideration of its December 1985 decision. The Board advised the appellant that he could exercise the option to reopen his claim at any time through the submission of new and material evidence.
Since that time, the appellant submitted numerous requests to revoke the forfeiture of his VA benefits. In March 1987, for example, the appellant submitted several pieces of evidence, including a July 1983 joint affidavit describing his spouse as a law abiding citizen and an October 1986 letter from Dr. A. noting that the appellant had schizophrenic disorder. In a March 1987 letter, the RO advised the appellant that the information he had furnished had been previously considered and was not sufficient to constitute new and material evidence to reopen the claim.
In April 1987, the appellant's spouse submitted a certification from a medical specialist indicating that the appellant had been treated in February 1987 after an incident in which he was observed to be suspicious, irritable, hostile, and have impulsive tendencies. Also submitted was an affidavit from a police employee who described a February 1987 incident in which the appellant had acted in a threatening manner, causing great fear and scandal. In a June 1987 letter, the RO again concluded that the additional evidence received did not warrant revoking the forfeiture as it was not new and material.
The appellant's spouse appeared at a hearing in August 1987 at which she claimed that revocation of the forfeiture was warranted as she and the appellant no longer received income from their properties. She claimed that they had sold some of the properties and that their tenants on the remaining properties had not paid them. In a September 1987 letter, the RO explained to the appellant and his spouse that any change in their income status did not provide a basis to lift the forfeiture.
In December 1992, the appellant submitted an application for pension. In support of his claim, he submitted medical evidence noting numerous disabilities. Included in this evidence was an October 1992 record from Dr. A., who again indicated that the appellant was suffering from schizophrenia. In a March 1993 letter, the RO again advised the appellant that he had forfeited his right to VA benefits by deliberately presenting false and fraudulent evidence to VA. He was advised that his pension application was not appropriate as it did not address the issue of forfeiture.
Following the receipt of additional letters from the appellant, in an April 1994 letter, VA's Undersecretary for Benefits explained to the appellant that VA was unable to consider any new claim for VA benefits unless the forfeiture decision was reopened based on the receipt of new and material evidence.
In February 1997, the appellant submitted a statement claiming that he and his spouse had disposed of their properties in the Philippines, including transferring them to their heirs. He attached various property records in support of his claim. He alleged that these property records were new and material evidence sufficient to revoke the forfeiture declared against him. In a March 1997 letter, the RO advised the appellant that the additional evidence received was not new and material evidence to reopen the claim. He was advised of his appellate rights but did not appeal.
In October 2003, the appellant again claimed entitlement to pension benefits. In support of his claim, he submitted medical records showing that he had received treatment for numerous disabilities. In a January 2004 letter, the RO advised the appellant that he was not entitled to pension as he had forfeited his right to VA benefits by knowing and intentionally pretending to be disabled due to mental illness. He was advised of his appellate rights in a January 2004 letter but did not appeal.
In February 2009, the appellant again claimed entitlement to VA benefits, including a one-time payment from the Filipino Equity Compensation Fund. In support of his claim, he submitted duplicative service personnel records as well as additional medical records showing treatment for various disabiities.
In a May 2009 statement, the appellant noted that he recalled that his claim for VA benefits had been previously denied as it had been determined that he had submitted false and fraudulent evidence in support of his claim for pension benefits. The appellant claimed that he did not believe he had committed any wrongdoing because
I wish to inform you that the day I went to your DVA, Manila Regional Office, to file an application for pension, I was met by a so called VA Fixer who had introduced himself to have full connection with one of the DVA employees in your office to assist veterans and expedite the processing of veterans claims. This VA Fixer filled up my application for pension. When answering the areas of having real estate property assets and income, the VA Fixer advised me that I should not disclose I have real estate properties and income, because DVA will use them against me causing to deny my application for pension. The VA Fixer also said that I do not quality for compensation, because my discharge papers did not indicate that I have service-connected disabilities during my military service. I was basically forced to make false statements to avoid being denied for pension. I had followed all the VA Fixer's advice, instructions, and guidance and I have paid him of his services.
In a subsequent June 2009 statement, the appellant reiterated his contentions that he should not be held responsible for providing false and fraudulent information to VA as he was "just following the VA Fixer's suggestions and instructions."
In a September 2009 statement, the appellant claimed that he was surprised to learn that he had been accused of lying and feigning mental illness. He denied the accusation, stating that "a normal person will never make a claim that he is mentally ill just to claim VA benefits." The appellant claimed that he had not "made a claim that I am a mentally ill person," although "I might have stated that I am a mentally disturbed and displaying some symptoms of psychiatric disorder" due to traumatic in-service experiences.
At his March 2011 hearing, the appellant testified that he felt entitled to VA benefits because all of his friends were receiving benefits. He testified that he did not know why VA had scrutinized his claim more than other claims. He testified that he really did have "that sickness." A friend of the appellant's testified that the appellant had received inaccurate and false guidance from a VA claims fixer. Because he "just signed" the VA claims forms "because of the recommendations, suggestion and guidance" of VA claims fixers, he had not intentionally defrauded the government.
Following the hearing, the appellant submitted an affidavit from the friend who had testified at the March 2011 hearing. The individual indicated that the appellant had no knowledge of VA regulations and had depended on a claims fixer who provided him with "inaccurate and false" guidance. The individual indicated that given the appellant's limited education and mental capacity, he had no intention of defrauding the government.
Applicable Law
New and material evidence
In general, decisions of the RO and the Board that are not appealed in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2010). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim.
For claims such as this one, filed on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (2010).
To reopen a previously disallowed claim, new and material evidence must be presented or secured since the last final disallowance of the claim on any basis, including on the basis that there was no new and material evidence to reopen the claim since a prior final disallowance. See Evans v. Brown, 9 Vet. App. 273, 285 (1996).
For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, "credibility" of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The U.S. Court of Appeals for Veterans Claims (Court) has held, however, that the Justus credibility rule is not "boundless or blind." Rather, if the newly submitted evidence is "inherently false or untrue," the Justus credibility rule does not apply. Duran v. Brown, 7 Vet. App. 216 (1994).
Forfeiture
The law provides that whoever knowingly makes or causes to be made or conspires, combines, aids, or assists in, agrees to, arranges for, or in any way procures the making or presentation of a false or fraudulent affidavit, declaration, certificate, statement, voucher, or paper, concerning any claim for benefits under any of the laws administered by the Secretary (except laws pertaining to insurance benefits) shall forfeit all rights, claims, and benefits under all laws administered by the Secretary. 38 U.S.C.A. § 6103 (West 2002).
Analysis
As noted above, in a December 1985 decision, the Board found that the appellant had forfeited his right to VA benefits under the provisions of 38 U.S.C. 3503(a) (currently 38 U.S.C.A. 6103(a)). In reaching its decision, the Board determined that the evidence showed, beyond a reasonable doubt, that the appellant had fraudulently feigned a serious mental illness in order to qualify for VA pension benefits. The Board's decision is final and not subject to revision on the same factual basis. 38 U.S.C.A. 4004(b) (West 1982); 38 C.F.R. 19.104 (1985).
The appellant thereafter sought revocation of the forfeiture on numerous occasions. The RO consistently denied the claims, finding that the appellant had forfeited his right to VA benefits and that new and material evidence had not been received to reopen the claim for revocation of the forfeiture of his VA benefits. Most recently, the appellant was notified of the RO's determination and his appellate rights in a January 2004 letter, but he did not appeal. Thus, the decision is final and not subject to revision on the same factual basis. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2004).
In this appeal, the appellant again seeks revocation of the forfeiture declared against him. Despite the finality of a prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2010); see also Trilles v. West, 13 Vet. App. 314 (2000) (holding that a claimant who has been the subject of a final decision declaring forfeiture of eligibility for VA benefits may have the final decision reopened upon the proffer of new and material evidence).
Thus, the Board has reviewed the entire record, with particular attention to the additional evidence received since the last final determination in January 2004. As discussed in detail above, the additional evidence received includes duplicative service personnel records, medical records showing treatment for various medical conditions, and the appellant's statements and hearing testimony, as well as that of his friend.
With respect to the service personnel records, evidence which is duplicative or redundant of that previously considered is not new for purposes of reopening a claim. 38 C.F.R. § 3.156. Similarly, the statements of the appellant and his friend to the effect that he did not understand VA regulations and/or did not intentionally or falsely claim to have a mental illness are cumulative of evidence previously considered by VA on numerous occasions. The Board also notes that the recent medical records showing that the appellant is under treatment for various medical conditions is wholly irrelevant does not raise a reasonable possibility of substantiating the claim for revocation of the forfeiture. This medical evidence merely records treatment for current conditions. It contains no indication whatsoever upon which to rebut the conclusion that the appellant fraudulently feigned a serious mental illness in the 1970's and 1980's in order to receive VA pension benefits. In other words, the fact that the appellant may now be totally disabled, due to a psychiatric disability or otherwise, does not constitute a removal of the impediment to his obtaining VA pension benefits. The forfeiture decision discussed above was not predicated upon the finding that the appellant was not totally disabled. Rather, the appellant VA benefits were forfeited because it was determined that he fraudulently feigned a serious mental illness in connection with his claim for VA pension benefits.
The Board has also considered the appellant's statements to the effect that he committed no wrongdoing because in providing false information to VA, he was only following the advice of a claims fixer. He reports that "I was basically forced to make false statements to avoid being denied for pension." Again, the Board finds that this evidence does not raise a reasonable possibility of substantiating the claim for revocation of the forfeiture of his VA benefits. First, the Board notes that the appellant's misrepresentation of his family financial situation on the Financial Status forms he provided to VA was not a factor in the forfeiture of his VA benefits, only those of his spouse. It is unclear whether the appellant contends that the claims fixer also "basically forced" him to feign or exaggerate a mental disability during VA medical examinations and field investigations. Regardless, the appellant has acknowledged that he understood the fixer's instructions that unless he lied, his benefits would be denied. This statement serves to strengthen the finding that the appellant intentionally provided fraudulent evidence in order to obtain VA benefits to which he knew he had no entitlement.
In light of the above, the Board concludes that new and material evidence has not been received to reopen the claim of entitlement to revocation of forfeiture of the appellant's right to VA benefits. The preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
In reaching this decision, the Board observes that the Court has held that a declaration of forfeiture may be revoked upon the receipt of new and material evidence or based on a finding of clear and unmistakable error in the original forfeiture decision. Trilles, 13 Vet. App. at 322. In this case, there is no indication, nor has the appellant contended, that VA committed clear and unmistakable error in its December 1985 decision. Thus, no further consideration of this matter is warranted.
Filipino Veterans Equity Compensation Fund
Under the American Recovery and Reinvestment Act, a one-time benefit is provided for certain veterans from the "Filipino Veterans Equity Compensation Fund." American Recovery and Reinvestment Act § 1002, Pub. L. No. 111-5 (enacted February 17, 2009). The appellant, however, has forfeited his right to VA benefits. In the absence of evidence that the forfeiture should be revoked, the claim of entitlement to a one-time payment from the Filipino Veterans Equity Compensation Fund must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that where law, and not the evidence, is dispositive, the appeal should be terminated for lack of legal merit or entitlement).
ORDER
New and material evidence having not been received, the application to reopen the claim of entitlement to revocation of forfeiture of the appellant's right to VA benefits is denied.
Entitlement to one-time payment from the Filipino Veterans Equity Compensation Fund is denied.
______________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs